Tevi v Bani [2010] VUSC 69; Civil Case 24 of 2008 (2 June 2010)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 24 of 2008

BETWEEN:

NANCY TEVI
Claimant

AND:

LENCY BANI
First Defendant

AND:

REPUBLIC OF VANUATU
Second Defendant

Mr Justice Oliver A. Saksak

Mr Henzler Vira for the Claimant
No appearance by the Defendant

RULING

1. This matter was given its first listing on 8th July 2008 and returnable for first conference on 24th September 2008. Since then to 2nd June 2010, the matter has been called 12 times. On 25th March 2009 the case was called at Ambore, West Ambae for hearing but the defendant did not turn up in Court. On none of the 12 occasions the Court has called the case has the Defendant appeared.
   
2. The First Defendant has never filed any defence or response to the claims.
   
3. The Second Defendant filed a defence to the Amended Claim of the claimant on 14th December 2009 and whilst generally denying all allegations, the Second Defendant indicated it would abide by the Orders of the Court, except any order as to costs.
   
4. By Order of 3rd May 2010, the Court granted leave to the Second Defendant to be excused from further appearances, explaining why they are not in Court today.
   
5. This case begs for resolution. It is quite a simple case. It arose out of the following facts –
   
   • (a) On 13th October 1979, the Claimant and First Defendant got married at Waiseni Village, South Santo.
     
   • (b) They later moved to Luganville to reside as the Claimant was working in Santo.
     
   • (c) They lived together until 2nd August 1985 when they acquired a leasehold property title No. 03/OK92/043. The lease was registered jointly in their names.
     
   • (d) The Claimant works as a registered nurse. The Defendant was a catechist with no income. The Claimant paid for premium and land rents. She obtained a bank loan to build a permanent house on the land. She has completed payments of the loan.
     
   • (e) On 19th February 2007, their marriage was dissolved by the Magistrate’s Court.
     
   • (f) The Defendant has now gone back to Ambae and is living with another woman with children.
     
6. Based on the above facts, the Claimant seeks three orders:-
   
   • (a) An order that the register kept in respect of registered lease title 03/OK92/043 be rectified by removing the Defendant’s name and leaving the Claimant’s name as sole proprietor.
     
   • (b) An order directing the Second Defendant to effect such amendment; and
     
   • (c) An order for costs on a Solicitor and client basis.
     
7. As the case stands today, it is unchallenged by the First Defendant. It appears that he is fully aware of this proceeding but is deliberately avoiding service or making it difficult for service to be effected. There has been numerous times when service, personal or substituted were made and not successful. It appears too that the Defendant just does not wish to be bothered by the litigation.
   
8. The evidence is contained in the sworn statement of the Claimant dated 13th June 2008. I am satisfied there has been a dissolution of marriage by Annexure 2 showing a Notice of Dissolution of Marriage issued by the Magistrate’s Court on 19th February 2007. This is an order absolute.
   
9. I am also satisfied that the Defendant has contributed nothing, finances or otherwise to assist the Claimant in purchasing leasehold title 03/OK92/043, to assist her pay land rents and to repay the bank loan in respect of building a permanent house on the leasehold title.
   
10. As such, I am satisfied that the Defendant has no interest or encumbrance on the leasehold title to enable him to put up a defence against the claim.
    
11. To adjourn further today because the Defendant is not present would be to delay justice to the Claimant who has genuine and substantial interests in the case. Substance of the case must therefore prevail over procedural requirements in circumstances such as this case.
    
12. For those reasons, I now give judgment in favour of the Claimant and grant her the first two orders sought but excluding an order for costs.
    
13. The formal Orders are:-
    
    • (a) The register kept in respect of leasehold title 03/OK92/043 be rectified by the Director of Land Records Department by removing the name "Lency Bani" (First Defendant) and leaving the name "Nancy Tevi" as the sole proprietor.
      
    • (b) The Second Defendant be hereby directed to procure and ensure that Order 1 above is effected within 28 days from the date of this judgment.
      

DATED at Luganville this 2nd day of June 2010.

BY THE COURT

OLIVER A. SAKSAK
Judge